LECTURE IX.  CONTRACT.  III. VOID AND
VOIDABLE.

[308] (breaks before heading)

THE elements of fact necessary to call a contract into existence, and
the legal consequences of a contract when formed, have been discussed. It
remains to consider successively the cases in which a contract is said to be
void, and those in which it is said to be voidable,  in which, that is, a
contract fails to be made when it seems to have been, or, having been made, can
be rescinded by one side or the other, and treated as if it had never been. I
take up the former class of cases first.

When a contract fails to be made, although the usual forms have been
gone through with, the ground of failure is commonly said to be mistake,
misrepresentation, or fraud. But I shall try to show that these are merely
dramatic circumstances, and that the true ground is the absence of one or more
of the primary elements, which have been shown, or are seen at once, to be
necessary to the existence of a contract.

If a man goes through the form of making a contract with A through B as
A's agent, and B is not in fact the agent of A, there is no contract, because
there is only one party. The promise offered to A has not been accepted by him,
and no consideration has moved from him. In such a case, although there is
generally mistake on one side and fraud on the other, it is very clear that no
special [309] doctrine need be resorted to, because the primary elements of a
contract explained in the last Lecture are not yet present.

Take next a different case. The defendant agreed to buy, and the
plaintiff agreed to sell, a cargo of cotton, "to arrive ex Peerless from
Bombay." There were two such vessels sailing from Bombay, one in October, the
other in December. The plaintiff meant the latter, the defendant the former. It
was held that the defendant was not bound to accept the cotton. /1/ It is
commonly said that such a contract is void, because of mutual mistake as to the
subject- matter, and because therefore the parties did not consent to the same
thing. But this way of putting it seems to me misleading. The law has nothing
to do with the actual state of the parties' minds. In contract, as elsewhere,
it must go by externals, and judge parties by their conduct. If there had been
but one "Peerless," and the defendant had said "Peerless" by mistake, meaning
"Peri," he would have been bound. The true ground of the decision was not that
each party meant a different thing from the other, as is implied by the
explanation which has been mentioned, but that each said a different thing. The
plaintiff offered one thing, the defendant expressed his assent to another.

A proper name, when used in business or in pleading, /2/ means one
individual thing, and no other, as every one knows, and therefore one to whom
such a name is used must find out at his peril what the object designated is.
If there are no circumstances which make the use deceptive on either side, each
is entitled to insist on the [310] meaning favorable to him for the word as
used by him, and neither is entitled to insist on that meaning for the word as
used by the other. So far from mistake having been the ground of decision, as
mistake, its only bearing, as it seems to me, was to establish that neither
party knew that he was understood by the other to use the word "Peerless "in
the sense which the latter gave to it. In that event there would perhaps have
been a binding contract, because, if a man uses a word to which he knows the
other party attaches, and understands him to attach, a certain meaning, he may
be held to that meaning, and not be allowed to give it any other. /1/

Next, suppose a case in which the offer and acceptance do not differ,
and in which both parties have used the same words in the same sense. Suppose
that A agreed to buy, and B agreed to sell, "these barrels of mackerel," and
that the barrels in question turn out to contain salt. There is mutual mistake
as to the contents of the barrels, and no fraud on either side. I suppose the
contract would be void. /2/

It is commonly said that the failure of the contract in such a case is
due to the fact of a difference in kind between the actual subject-matter and
that to which the intention of the parties was directed. It is perhaps more
instructive to say that the terms of the supposed contract, although seemingly
consistent, were contradictory, in matters that went to the root of the
bargain. For, by one of the essential terms, the subject-matter of the
agreement was the contents of certain barrels, and nothing else, and, by
another equally important, it was mackerel, and nothing else; [311] while, as a
matter of fact, it could not be both, because the contents of the barrels were
salt. As neither term could be left out without forcing on the parties a
contract which they did not make, it follows that A cannot be required to
accept, nor B to deliver either these barrels of salt, or other barrels of
mackerel; and without omitting one term, the promise is meaningless.

If there had been fraud on the seller's part, or if he had known what
the barrels really contained, the buyer might have had a right to insist on
delivery of the inferior article. Fraud would perhaps have made the contract
valid at his option. Because, when a man qualifies sensible words with others
which he knows, on secret grounds, are insensible when so applied, he may
fairly be taken to authorize his promisee to insist on the possible part of his
promise being performed, if the promisee is willing to forego the rest.

Take one more illustration like the last case. A policy of insurance is
issued on a certain building described in the policy as a machine-shop. In fact
the building is not a machine-shop, but an organ factory, which is a greater
risk. The contract is void, not because of any misrepresentation, but, as
before, because two of its essential terms are repugnant, and their union is
insensible. /1/

Of course the principle of repugnancy last explained might be stretched
to apply to any inconsistency between the different terms of a contract. It
might be said, for instance, that if a piece of gold is sold as eighteen-carat
gold, and it is in fact not so pure, or if a cow is sold as yielding an average
of twelve quarts of milk a day, and in fact she yields only six quarts, there
is no logical difference, [312] according to the explanation which has just
been offered, between those cases and that of the barrel of salt sold for
mackerel. Yet those bargains would not be void. At the most, they would only be
voidable, if the buyer chose to throw them up.

The distinctions of the law are founded on experience, not on logic. It
therefore does not make the dealings of men dependent on a mathematical
accuracy. Whatever is promised, a man has a right to be paid for, if it is not
given; but it does not follow that the absence of some insignificant detail
will authorize him to throw up the contract, still less that it will prevent
the formation of a contract, which is the matter now under consideration. The
repugnant terms must both be very important,  so important that the court
thinks that, if either is omitted, the contract would be different in substance
from that which the words of the parties seemed to express.

A term which refers directly to an identification by the senses has
always this degree of importance. If a promise is made to sell this cow, or
this mackerel, to this man, whatever else may be stricken from the contract, it
can never be enforced except touching this object and by this man. If this
barrel of salt is fraudulently sold for a barrel of mackerel, the buyer may
perhaps elect to take this barrel of salt if he chooses, but he cannot elect to
take another barrel of mackerel. If the seller is introduced by the name B, and
the buyer supposes him to be another person of the same name, and under that
impression delivers his written promise to buy of B, the B to whom the writing
is delivered is the contractee, if any one is, and, notwithstanding what has
been said of the use of proper names, I should suppose [313] a contract would
be made. /1/ For it is further to be said that, so far as by one of the terms
of a contract the thing promised or the promisee is identified by sight and
hearing, that term so far preponderates over all others that it is very rare
for the failure of any other element of description to prevent the making of a
contract. /2/ The most obvious of seeming exceptions is where the object not in
fact so identified, but only its covering or wrapper.

Of course the performance of a promise may be made conditional on all
the terms stipulated from the other side being complied with, but conditions
attaching to performance can never come into consideration until a contract has
been made, and so far the question has been touching the existence of a
contract in the first instance.

A different case may be suggested from any yet considered. Instead of a
repugnancy between offer and assent which prevents an agreement, or between the
terms of an agreement which makes it insensible on its fact, there may be a
like repugnancy between a term of the contract and a previous representation of
fact which is not expressly made a part of the contract. The representation may
have been the chief inducement and very foundation of the bargain. It may be
more important than any of the expressed terms, and yet the contract may have
[314] been reduced to writing in words which cannot fairly be construed to
include it. A vendor may have stated that barrels filled with salt contain
mackerel, but the contract may be only for the barrels and their contents. An
applicant for insurance may have misstated facts essential to the risk, yet the
policy may simply insure a certain building or a certain life. It may be asked
whether these contracts are not void also.

There might conceivably be cases in which, taking into account the
nature of the contract, the words used could be said to embody the
representation as a term by construction. For instance, it might be said that
the true and well-understood purport of a contract of insurance is not, as the
words seem to say, to take the risk of any loss by fire or perils of the sea,
however great the risk may be, but to take a risk of a certain magnitude, and
no other, which risk has been calculated mathematically from the statements of
the party insured. The extent of the risk taken is not specified in the policy,
because the old forms and established usage are otherwise, but the meaning is
perfectly understood.

If this reasoning were adopted, there would be an equal repugnancy in
the terms of the contract, whether the nature of the risk were written in the
policy or fixed by previous description. But, subject to possible exceptions of
this kind, it would seem that a contract would be made, and that the most that
could be claimed would be a right to rescind. Where parties having power to
bind themselves do acts and use words which are fit to create an obligation, I
take it that an obligation arises. If there is a mistake as to a fact not
mentioned in the contract, it goes only to the motives for making the contract.
But a [315] contract is not prevented from being made by the mere fact that one
party would not have made it if he had known the truth. In what cases a mistake
affecting motives is a ground for avoidance, does not concern this discussion,
because the subject now under consideration is when a contract is made, and the
question of avoiding or rescinding it presupposes that it has been made.

I think that it may now be assumed that, when fraud, misrepresentation,
or mistake is said to make a contract void, there is no new principle which
comes in to set aside an otherwise perfect obligation, but that in every such
case there is wanting one or more of the first elements which were explained in
the foregoing Lecture. Either there is no second party, or the two parties say
different things, or essential terms seemingly consistent are really
inconsistent as used.

When a contract is said to be voidable, it is assumed that a contract
has been made, but that it is subject to being unmade at the election of one
party. This must be because of the breach of some condition attached to its
existence either expressly or by implication.

If a condition is attached to the contract's coming into being, there is
as yet no contract. Either party may withdraw, at will, until the condition is
determined. There is no obligation, although there may be an offer or a
promise, and hence there is no relation between the parties which requires
discussion here. But some conditions seemingly arising out of a contract
already made are conditions of this sort. Such is always the case if the
condition of a promise lies within the control of the promisor's own will. For
instance, a promise to pay for clothes if made to the customer's satisfaction,
has been held in Massachusetts to [316] make the promisor his own final judge.
/1/ So interpreted, it appears to me to be no contract at all, until the
promisor's satisfaction is expressed. His promise is only to pay if he sees
fit, and such a promise cannot be made a contract because it cannot impose any
obligation. /2/ If the promise were construed to mean that the clothes should
be paid for provided they were such as ought to satisfy the promisor, /3/ and
thus to make the jury the arbiter, there would be a contract, because the
promisor gives up control over the event, but it would be subject to a
condition in the sense of the present analysis.

The conditions which a contract may contain have been divided by
theorists into conditions precedent and conditions subsequent. The distinction
has even been pronounced of great importance. It must be admitted that, if the
course of pleading be taken as a test, it is so. In some cases, the plaintiff
has to state that a condition has been performed in order to put the defendant
to his answer; in others, it is left to the defendant to set up that a
condition has been broken.

In one sense, all conditions are subsequent; in another, all are
precedent. All are subsequent to the first stage of the obligation. /4/ Take,
for instance, the case of a promise to pay for work if done to the satisfaction
of an architect. The condition is a clear case of what is called a condition
precedent. There can be no duty to pay until the architect is satisfied. But
there can be a [317] contract before that moment, because the determination
whether the promisor shall pay or not is no longer within his control. Hence
the condition is subsequent to the existence of the obligation.

On the other hand, every condition subsequent is precedent to the
incidence of the burden of the law. If we look at the law as it would be
regarded by one who had no scruples against doing anything which he could do
without incurring legal consequences, it is obvious that the main consequence
attached by the law to a contract is a greater or less possibility of having to
pay money. The only question from the purely legal point of view is whether the
promisor will be compelled to pay. And the important moment is that at which
that point is settled. All conditions are precedent to that.

But all conditions are precedent, not only in this extreme sense, but
also to the existence of the plaintiff's cause of action. As strong a case as
can be put is that of a policy of insurance conditioned to be void if not sued
upon within one year from a failure to pay as agreed. The condition does not
come into play until a loss has occurred, the duty to pay has been neglected,
and a cause of action has arisen. Nevertheless, it is precedent to the
plaintiff's cause of action. When a man sues, the question is not whether he
has had a cause of action in the past, but whether he has one then. He has not
one then, unless the year is still running. If it were left for the defendant
to set up the lapse of the year, that would be due to the circumstance that the
order of pleading does not require a plaintiff to meet all possible defences,
and to set out a case unanswerable except by denial. The point at which the law
calls on the defendant for an answer varies [318] in different cases. Sometimes
it would seem to be governed simply by convenience of proof, requiring the
party who has the affirmative to plead and prove it. Sometimes there seems to
be a reference to the usual course of events, and matters belong to the defence
because they are only exceptionally true.

The most logical distinction would be between conditions which must be
satisfied before a promise can be broken, and those which, like the last,
discharge the liability after a breach has occurred. /1/ But this is of the
slightest possible importance, and it may be doubted whether another case like
the last could be found.

It is much more important to mark the distinction between a stipulation
which only has the effect of confining a promise to certain cases, and a
condition properly so called. Every condition, it is true, has this effect upon
the promise to which it is attached, so that, whatever the rule of pleading may
be, /2/ a promise is as truly kept and performed by doing nothing where the
condition of the stipulated act has been broken, as it would have been by doing
the act if the condition had been fulfilled. But if this were all, every clause
in a contract which showed what the promisor did not promise would be a
condition, and the word would be worse than useless. The characteristic feature
is quite different.

A condition properly so called is an event, the happening of which
authorizes the person in whose favor the condition is reserved to treat the
contract as if it had not been made,  to avoid it, as is commonly said,
 that is, to insist on both parties being restored to the position in
[319] which they stood before the contract was made. When a condition operates
as such, it lets in an outside force to destroy the existing state of things.
For although its existence is due to consent of parties, its operation depends
on the choice of one of them. When a condition is broken, the person entitled
to insist on it may do so if he chooses; but he may, if he prefers, elect to
keep the contract on foot. He gets his right to avoid it from the agreement,
but the avoidance comes from him.

Hence it is important to distinguish those stipulations which have this
extreme effect from those which only interpret the extent of a promise, or
define the events to which it applies. And as it has just been shown that a
condition need not be insisted on as such, we must further distinguish between
its operation by way of avoidance, which is peculiar to it, and its incidental
working by way of interpretation and definition, in common with other clauses
not conditions.

This is best illustrated by taking a bilateral contract between A and B,
where A's undertaking is conditional on B's doing what he promises to do, and
where, after A has got a certain distance in his task, B breaks his half of the
bargain. For instance, A is employed as a clerk by B, and is wrongfully
dismissed in the middle of a quarter. In favor of A, the contract is
conditional on B's keeping his agreement to employ him. Whether A insists on
the condition or not, he is not bound to do any more. /1/ So far, the condition
works simply by way of definition. It establishes that A has not promised to
act in the case which has happened. But besides this, for which a condition
[320] was not necessary, A may take his choice between two courses. In the
first place, he may elect to avoid the contract. In that case the parties stand
as if no contract had been made, and A, having done work for B which was
understood not to be gratuitous, and for which no rate of compensation has been
fixed, can recover what the jury think his services were reasonably worth. The
contract no longer determines the quid pro quo. But as an alternative course A
may stand by the contract if he prefers to do so, and sue B for breaking it. In
that case he can recover as part of his damages pay at the contract rate for
what he had done, as well as compensation for his loss of opportunity to finish
it. But the points which are material for the present discussion are, that
these two remedies are mutually exclusive, /1/ one supposing the contract to be
relied on, the other that it is set aside, but that A's stopping work and doing
no more after B's breach is equally consistent with either choice, and has in
fact nothing to do with the matter.

One word should be added to avoid misapprehension. When it is said that
A has done all that he promised to do in the case which has happened, it is not
meant that he is necessarily entitled to the same compensation as if he had
done the larger amount of work. B's promise in the case supposed was to pay so
much a quarter for services; and although the consideration of the promise was
the promise by A to perform them, the scope of it was limited to the case of
their being performed in fact. Hence A could not simply wait till the end of
his term, and then recover the full amount which he would have had if the
employment had continued. Nor is he any more entitled to do so from [321] the
fact that it was B's fault that the services were not rendered. B's answer to
any such claim is perfect. He is only liable upon a promise, and he in his turn
only promised to pay in a case which has not happened. He did promise to
employ, however, and for not doing that he is liable in damages.

One or two more illustrations will be useful. A promises to deliver, and
B promises to accept and pay for, certain goods at a certain time and place.
When the time comes, neither party is on hand. Neither would be liable to an
action, and, according to what has been said, each has done all that he
promised to do in the event which has happened, to wit, nothing. It might be
objected that, if A has done all that he is bound to do, he ought to be able to
sue B, since performance or readiness to perform was all that was necessary to
give him that right, and conversely the same might be said of B. On the other
hand, considering either B or A as defendant, the same facts would be a
complete defence. The puzzle is largely one of words.

A and B have, it is true, each performed all that they promised to do at
the present stage, because they each only promised to act in the event of the
other being ready and willing to act at the same time. But the readiness and
willingness, although not necessary to the performance of either promise, and
therefore not a duty, was necessary in order to present a case to which the
promise of action on the other side would apply. Hence, although A and B have
each performed their own promise, they have not performed the condition to
their right of demanding more from the other side. The performance of that
condition is purely optional until one side has brought it within the [322]
scope of the other's undertaking by performing it himself. But it is
performance in the latter sense, that is, the satisfying of all conditions, as
well as the keeping of his own promises, which is necessary to give A or B a
right of action.

Conditions may be created by the very words of a contract. Of such cases
there is nothing to be said, for parties may agree to what they choose. But
they may also be held to arise by construction, where no provision is made in
terms for rescinding or avoiding the contract in any case. The nature of the
conditions which the law thus reads in needs explanation. It may be said, in a
general way, that they are directed to the existence of the manifest grounds
for making the bargain on the side of the rescinding party, or the
accomplishment of its manifest objects. But that is not enough. Generally
speaking, the disappointment must be caused by the wrong-doing of the person on
the other side; and the most obvious cases of such wrong-doing are fraud and
misrepresentation, or failure to perform his own part of the contract.

Fraud and misrepresentation thus need to be considered once more in this
connection. I take the latter first. In dealing with it the first question
which arises is whether the representation is, or is not, part of the contract.
If the contract is in writing and the representation is set out on the face of
the paper, it may be material or immaterial, but the effect of its untruth will
be determined on much the same principles as govern the failure to perform a
promise on the same side. If the contract is made by word of mouth, there may
be a large latitude in connecting words of representation with later words of
promise; but when they are determined to be a part of the contract [323], the
same principles apply as if the whole were in writing.

The question now before us is the effect of a misrepresentation which
leads to, but is not a part of, the contract. Suppose that the contract is in
writing, but does not contain it, does such a previous misrepresentation
authorize rescission in any case? and if so, does it in any case except where
it goes to the height of fraud? The promisor might say, It does not matter to
me whether you knew that your representation was false or not; the only thing I
am concerned with is its truth. If it is untrue, I suffer equally whether you
knew it to be so or not. But it has been shown, in an earlier Lecture, that the
law does not go on the principle that a man is answerable for all the
consequences of all his acts. An act is indifferent in itself. It receives its
character from the concomitant facts known to the actor at the time. If a man
states a thing reasonably believing that he is speaking from knowledge, it is
contrary to the analogies of the law to throw the peril of the truth upon him
unless he agrees to assume that peril, and he did not do so in the case
supposed, as the representation was not made part of the contract.

It is very different when there is fraud. Fraud may as well lead to the
making of a contract by a statement outside the contract as by one contained in
it. But the law would hold the contract not less conditional on good faith in
one case than in the other.

To illustrate, we may take a somewhat extreme case. A says to B, I have
not opened these barrels myself, but they contain No. 1 mackerel: I paid so
much for them to so and so, naming a well-known dealer. Afterwards A writes B,
I will sell the barrels which you saw, and their [324] contents, for so much;
and B accepts. The barrels turn out to contain salt. I suppose the contract
would be binding if the statements touching the contents were honest, and
voidable if they were fraudulent.

Fraudulent representations outside a contract can never, it would seem,
go to anything except the motives for making it. If outside the contract, they
cannot often affect its interpretation. A promise in certain words has a
definite meaning, which the promisor is presumed to understand. If A says to B,
I promise you to buy this barrel and its contents, his words designate a person
and thing identified by the senses, and they signify nothing more. There is no
repugnancy, and if that person is ready to deliver that thing, the purchaser
cannot say that any term in the contract itself is not complied with. He may
have been fraudulently induced to believe that B was another B, and that the
barrel contained mackerel; but however much his belief on those points may have
affected his willingness to make the promise, it would be somewhat extravagant
to give his words a different meaning on that account. "You" means the person
before the speaker, whatever his name, and "contents" applies to salt, as well
as to mackerel.

It is no doubt only by reason of a condition construed into the contract
that fraud is a ground of rescission. Parties could agree, if they chose, that
a contract should be binding without regard to truth or falsehood outside of it
on either part.

But, as has been said before in these Lectures, although the law starts
from the distinctions and uses the language of morality, it necessarily ends in
external standards not dependent on the actual consciousness of the individual.
[325] So it has happened with fraud. If a man makes a representation, knowing
facts which by the average standard of the community are sufficient to give him
warning that it is probably untrue, and it is untrue, he is guilty of fraud in
theory of law whether he believes his statement or not. The courts of
Massachusetts, at least, go much further. They seem to hold that any material
statement made by a man as of his own knowledge, or in such a way as fairly to
be understood as made of his own knowledge, is fraudulent if untrue,
irrespective of the reasons he may have had for believing it and for believing
that he knew it. /1/ It is clear, therefore, that a representation may be
morally innocent, and yet fraudulent in theory of law. Indeed, the
Massachusetts rule seems to stop little short of the principle laid down by the
English courts of equity, which has been criticised in an earlier Lecture, /2/
since most positive affirmations of facts would at least warrant a jury in
finding that they were reasonably understood to be made as of the party's own
knowledge, and might therefore warrant a rescission if they turned out to be
untrue. The moral phraseology has ceased to be apposite, and an external
standard of responsibility has been reached. But the starting- point is
nevertheless fraud, and except on the ground of fraud, as defined by law, I do
not think that misrepresentations before the contract affect its validity,
although they lead directly to its making. But neither the contract nor the
implied condition calls for the existence of the facts as to which the false
representations were made. They call only for the absence of certain false
representations. The condition is not that the promisee shall be a certain
other B, or that the contents of the barrel shall be mackerel, [326] but that
the promisee has not lied to him about material facts.

Then the question arises, How do you determine what facts are material?
As the facts are not required by the contract, the only way in which they can
be material is that a belief in their being true is likely to have led to the
making of the contract.

It is not then true, as it is sometimes said, that the law does not
concern itself with the motives for making contracts. On the contrary, the
whole scope of fraud outside the contract is the creation of false motives and
the removal of true ones. And this consideration will afford a reasonable test
of the cases in which fraud will warrant rescission. It is said that a
fraudulent representation must be material to have that effect. But how are we
to decide whether it is material or not? If the above argument is correct, it
must be by an appeal to ordinary experience to decide whether a belief that the
fact was as represented would naturally have led to, or a contrary belief would
naturally have prevented, the making of the contract.

If the belief would not naturally have had such an effect, either in
general or under the known circumstances of the particular case, the fraud is
immaterial. If a man is induced to contract with another by a fraudulent
representation of the latter that he is a great-grandson of Thomas Jefferson, I
do not suppose that the contract would be voidable unless the contractee knew
that, for special reasons, his lie would tend to bring the contract about.

The conditions or grounds for avoiding a contract which have been dealt
with thus far are conditions concerning the conduct of the parties outside of
the itself. [327] Still confining myself to conditions arising by construction
of law,  that is to say, not directly and in terms attached to a promise
by the literal meaning of the words in which it is expressed,  I now come
to those which concern facts to which the contract does in some way refer.

Such conditions may be found in contracts where the promise is only on
one side. It has been said that where the contract is unilateral, and its
language therefore is all that of the promisor, clauses in his favor will be
construed as conditions more readily than the same words in a bilateral
contract; indeed, that they must be so construed, because, if they do not
create a condition, they do him no good, since ex hypothesi they are not
promises by the other party. /1/ How far this ingenious suggestion has had a
practical effect on doctrine may perhaps be doubted.

But it will be enough for the purposes of this general survey to deal
with bilateral contracts, where there are undertakings on both sides, and where
the condition implied in favor of one party is that the other shall make good
what he on his part has undertaken.

The undertakings of a contract may be for the existence of a fact in the
present or in the future. They can be promises only in the latter case; but in
the former, they be equally essential terms in the bargain.

Here again we come on the law of representations, but in a new phase.
Being a part of the contract, it is always possible that their truth should
make a condition of the contract wholly irrespective of any question of fraud.
And it often is so in fact. It is not, however, every representation embodied
in the words used on one side which will [328] make a condition in favor of the
other party. Suppose A agrees to sell, and B agrees to buy, "A's seven-year-old
sorrel horse Eclipse, now in the possession of B on trial," and in fact the
horse is chestnut-colored, not sorrel. I do not suppose that B could refuse to
pay for the horse on that ground. If the law were so foolish as to aim at
merely formal consistency, it might indeed be said that there was as absolute a
repugnancy between the different terms of this contract as in the ease of an
agreement to sell certain barrels of mackerel, where the barrels turned out to
contain salt. If this view were adopted, there would not be a contract subject
to a condition, there would be no contract at all. But in truth there is a
contract, and there is not even a condition. As has been said already, it is
not every repugnancy that makes a contract void, and it is not every failure in
the terms of the counter undertaking that makes it voidable. Here it plainly
appears that the buyer knows exactly what he is going to get, and therefore
that the mistake of color has no bearing on the bargain. /1/

If, on the other hand, a contract contained a representation which was
fraudulent, and which misled the party to whom it was made, the contract would
be voidable on the same principles as if the representation had been made
beforehand. But words of description in a contract are very frequently held to
amount to what is sometimes called a warranty, irrespective of fraud. Whether
they do so or not is a question to be determined by the court on grounds of
common sense, looking to the meaning of the words, the importance in the
transaction of the facts [329] which the words convey, and so forth. But when
words of description are determined to be a warranty, the meaning of the
decision is not merely that the party using them binds himself to answer for
their truth, but that their truth is a condition of the contract.

For instance, in a leading case /1/ the agreement was that the
plaintiff's ship, then in the port of Amsterdam, should, with all possible
despatch, proceed direct to Newport, England, and there load a cargo of coals
for Hong Kong. At the date of the charter-party the vessel was not in
Amsterdam, but she arrived there four days later. The plaintiff had notice that
the defendant considered time important. It was held that the presence of the
vessel in the port of Amsterdam at the date of the contract was a condition,
the breach of which entitled the defendant to refuse to load, and to rescind
the contract. If the view were adopted that a condition must be a future event,
and that a promise purporting to be conditional on a past or present event is
either absolute or no promise at all, it would follow that in this case the
defendant had never made a promise. /2/ He had only promised if circumstances
existed which did not exist. I have already stated my objections to this way of
looking at such cases, /2/ and will only add that the courts, so far as I am
aware, do not sanction it, and certainly did not in this instance.

There is another ground for holding the charter-party void and no
contract, instead of regarding it as only voidable, which is equally against
authority, which nevertheless I have never been able to answer wholly to my
satisfaction. In the case put, the representation of the lessor of the vessel
[330] concerned the vessel itself, and therefore entered into the description
of the thing the lessee agreed to take. I do not quite see why there is not as
fatal a repugnancy between the different terms of this contract as was found in
that for the sale of the barrels of salt described as containing mackerel. Why
is the repugnancy between the two terms,  first, that the thing sold is
the contents of these barrels, and, second, that it is mackerel  fatal to
the existence of a contract? It is because each of those terms goes to the very
root and essence of the contract, /1/  because to compel the buyer to
take something answering to one, but not to the other requirement, would be
holding him to do a substantially different thing from what he promised, and
because a promise to take one and the same thing answering to both requirements
is therefore contradictory in a substantial matter. It has been seen that the
law does not go on any merely logical ground, and does not hold that every
slight repugnancy will make a contract even voidable. But, on the other hand,
when the repugnancy is between terms which are both essential, it is fatal to
the very existence of the contract. How then do we decide whether a given term
is essential? Surely the best way of finding out is by seeing how the parties
have dealt with it. For want of any expression on their part we may refer to
the speech and dealings of every day, /2/ and say that, if its absence would
make the subject-matter a different thing, its presence is essential to the
existence of the agreement. But the parties may agree that anything, however
trifling, shall be essential, as well [331] as that anything, however
important, shall not be; and if that essential is part of the contract
description of a specific thing which is also identified by reference to the
senses, how can there be a contract in its absence any more than if the thing
is in popular speech different in kind from its description? The qualities that
make sameness or difference of kind for the purposes of a contract are not
determined by Agassiz or Darwin, or by the public at large, but by the will of
the parties, which decides that for their purposes the characteristics insisted
on are such and such. /1/1 Now, if this be true, what evidence can there be
that a certain requirement is essential, that without it the subject-matter
will be different in kind from the description, better than that one party has
required and the other given a warranty of its presence? Yet the contract
description of the specific vessel as now in the port of Amsterdam, although
held to be an implied warranty, does not seem to have been regarded as making
the contract repugnant and void, but only as giving the defendant the option of
avoiding it. /2/ Even an express warranty of quality in sales does not have
this effect, and in England, indeed, it does not allow the purchaser to rescind
in case of breach. On this last point the law of Massachusetts is
different.

The explanation has been offered of the English doctrine with regard to
sales, that, when the title has passed, the purchaser has already had some
benefit from the contract, and therefore cannot wholly replace the seller in
statu quo, as must be done when a contract is rescinded. /3/ This reasoning
[332] seems doubtful, even to show that the contract is not voidable, but has
no bearing on the argument that it is void. For if the contract is void, the
title does not pass.

It might be said that there is no repugnancy in the charterer's promise,
because he only promises to load a certain ship, and that the words "now in the
port of Amsterdam" are merely matter of history when the time for loading
comes, and no part of the description of the vessel which he promised to load.
But the moment those words are decided to be essential they become part of the
description, and the promise is to load a certain vessel which is named the
Martaban, and which was in the port of Amsterdam at the date of the contract.
So interpreted, it is repugnant.

Probably the true solution is to be found in practical considerations.
At any rate, the fact is that the law has established three degrees in the
effect of repugnancy. If one of the repugnant terms is wholly insignificant, it
is simply disregarded, or at most will only found a claim for damages. The law
would be loath to hold a contract void for repugnancy in present terms, when if
the same terms were only promised a failure of one of them would not warrant a
refusal to perform on the other side. If, on the other hand, both are of the
extremest importance, so that to enforce the rest of the promise or bargain
without one of them would not merely deprive one party of a stipulated
incident, but would force a substantially different bargain on him, the promise
will be void. There is an intermediate class of cases where it is left to the
disappointed party to decide. But as the lines between the three are of this
vague kind, it is not surprising that they have been differently drawn in
different jurisdictions.

[333] The examples which have been given of undertakings for a present
state of facts have been confined to those touching the present condition of
the subject- matter of the contract. Of course there is no such limit to the
scope of their employment. A contract may warrant the existence of other facts
as well, and examples of this kind probably might be found or imagined where it
would be clear that the only effect of the warranty was to attach a condition
to the contract, in favor of the other side, and where the question would be
avoided whether there was not something more than a condition,  a
repugnancy which prevented the formation of any contract at all. But the
preceding illustrations are enough for the present purpose.

We may now pass from undertakings that certain facts are true at the
time of making the contract, to undertakings that certain facts shall be true
at some later time,  that is, to promises properly so called. The
question is when performance of the promise on one side is a condition to the
obligation of the contract on the other. In practice, this question is apt to
be treated as identical with another, which, as has been shown earlier, is a
distinct point; namely, when performance on one side is a condition of the
right to call for performance on the other. It is of course conceivable that a
promise should be limited to the case of performance of the things promised on
the other side, and yet that a failure of the latter should not warrant a
rescission of the contract. Wherever one party has already received a
substantial benefit under a contract of a kind which cannot be restored, it is
too late to rescind, however important a breach may be committed later by the
other side. Yet he may be [334] excused from going farther. Suppose a contract
is made for a month's labor, ten dollars to be paid down, not to be recovered
except in case of rescission for the laborer's fault, and thirty dollars at the
end of the month. If the laborer should wrongfully stop work at the end of a
fortnight, I do not suppose that the contract could be rescinded, and that the
ten dollars could be recovered as money had and received; /1/ but, on the other
hand, the employer would not be bound to pay the thirty dollars, and of course
he could sue for damages on the contract. /2/

But, for the most part, a breach of promise which discharges the
promisee from further performance on his side will also warrant rescission, so
that no great harm is done by the popular confusion of the two questions. Where
the promise to perform on one side is limited to the case of performance on the
other, the contract is generally conditioned on it also. In what follows, I
shall take up the cases which I wish to notice without stopping to consider
whether the contract was in a strict sense conditioned on performance of the
promise on one side, or whether the true construction was merely that the
promise on the other side was limited to that event.

Now, how do we settle whether such a condition exists? It is easy to err
by seeking too eagerly for simplicity, and by striving too hard to reduce all
cases to artificial presumptions, which are less obvious than the decisions
which they are supposed to explain. The foundation of the whole matter is,
after all, good sense, as the courts have often said. The law means to carry
out the intention of the parties, and, so far as they have not provided [335]
for the event which has happened, it has to say what they naturally would have
intended if their minds had been turned to the point. It will be found that
decisions based on the direct implications of the language used, and others
based upon a remoter inference of what the parties must have meant, or would
have said if they had spoken, shade into each other by imperceptible
degrees.

Mr. Langdell has called attention to a very important principle, and one
which, no doubt, throws light on many decisions. /1/ This is, that, where you
have a bilateral contract, while the consideration of each promise is the
counter promise, yet prima facie the payment for performance of one is
performance of the other. The performance of the other party is what each means
to have in return for his own. If A promises a barrel of flour to B, and B
promises him ten dollars for it, A means to have the ten dollars for his flour,
and B means to have the flour for his ten dollars. If no time is set for either
act, neither can call on the other to perform without being ready at the same
time himself.

But this principle of equivalency is not the only principle to be drawn
even from the form of contracts, without considering their subject-matter, and
of course it is not offered as such in Mr. Langdell's work.

Another very clear one is found in contracts for the sale or lease of a
thing, and the like. Here the qualities or characteristics which the owner
promises that the thing furnished shall possess, go to describe the thing which
the buyer promises to accept. If any of the promised traits are wanting in the
thing tendered, the buyer may refuse to accept, not merely on the ground that
he has not [336] been offered the equivalent for keeping his promise, but also
on the ground that he never promised to accept what is offered him. /1/ It has
been seen that, where the contract contains a statement touching the condition
of the thing at an earlier time than the moment for its acceptance, the past
condition may not always be held to enter into the description of the thing to
be accepted. But no such escape is possible here. Nevertheless there are limits
to the right of refusal even in the present class of cases. If the thing
promised is specific, the preponderance of that part of the description which
identifies the object by reference to the senses is sometimes strikingly
illustrated. One case has gone so far as to hold that performance of an
executory contract to purchase a specific thing cannot be refused because it
fails to come up to the warranted quality. /2/

Another principle of dependency to be drawn from the form of the
contract itself is, that performance of the promise on one side may be
manifestly intended to furnish the means for performing the promise on the
other. If a tenant should promise to make repairs, and the landlord should
promise to furnish him wood for the purpose, it is believed that at the present
day, whatever may have been the old decisions, the tenant's duty to repair
would be dependent upon the landlord's furnishing the material when required.
/3/

[337] Another case of a somewhat exceptional kind is where a party to a
bilateral contract agrees to do certain things and to give security for his
performance. Here it is manifest good-sense to hold giving the security a
condition of performance on the other side, if it be possible. For the
requirement of security shows that the party requiring it was not content to
rely on the simple promise of the other side, which he would be compelled to do
if he had to perform before the security was given, and thus the very object of
requiring it would be defeated. /1/

This last case suggests what is very forcibly impressed on any one who
studies the cases,  that, after all, the most of decision is not any
technical, or even any general principle of contracts, but a consideration of
the nature of the particular transaction as a practical matter. A promises B to
do a day's work for two dollars, and B promises A to pay two dollars for a
day's work. There the two promises cannot be performed at the same time. The
work will take all day, the payment half a minute. How are you to decide which
is to be done first, that is to say, which promise is dependent upon
performance on the other side? It is only by reference to the habits of the
community and to convenience. It is not enough to say that on the principle of
equivalency a man is not presumed to intend to pay for a thing until he has it.
The work is payment for the money, as much as the [338] money for the work, and
one must be paid in advance. The question is, why, if one man is not presumed
to intend to pay money until he has money's worth, the other is presumed to
intend to give money's worth before he has money. An answer cannot be obtained
from any general theory. The fact that employers, as a class, can be trusted
for wages more safely than the employed for their labor, that the employers
have had the power and have been the law- makers, or other considerations, it
matters not what, have determined that the work is to be done first. But the
grounds of decision are purely practical, and can never be elicited from
grammar or from logic.

A reference to practical considerations will be found to run all through
the subject. Take another instance. The plaintiff declared on a mutual
agreement between himself and the defendant that he would sell, and the
defendant would buy, certain Donskoy wool, to be shipped by the plaintiff at
Odessa, and delivered in England. Among the stipulations of the contract was
one, that the names of the vessels should be declared as soon as the wools were
shipped. The defence was, that the wool was bought, with the knowledge of both
parties, for the purpose of reselling it in the course of the defendant's
business; that it was an article of fluctuating value, and not salable until
the names of the vessels in which it was shipped should have been declared
according to the contract, but that the plaintiff did not declare the names of
the vessels as agreed. The decision of the court was given by one of the
greatest technical lawyers that ever lived, Baron Parke; yet he did not dream
of giving any technical or merely logical reason for the decision, but, after
stating in the above words the facts which were deemed material to the question
[339] whether declaring the names of the vessels was a condition to the duty to
accept, stated the ground of decision thus: "Looking at the nature of the
contract, and the great importance of it to the object with which the contract
was entered into with the knowledge of both parties, we think it was a
condition precedent." /1/

LECTURE X. - SUCCESSIONS AFTER DEATH.

[340] (breaks before heading)

In the Lecture on Possession, I tried to show that the notion of
possessing a right as such was intrinsically absurd. All rights are
consequences attached to filling some situation of fact. A right which may be
acquired by possession differs from others simply in being attached to a
situation of such a nature that it may be filled successively by different
persons, or by any one without regard to the lawfulness of his doing so, as is
the case where the situation consists in having a tangible object within one's
power.

When a right of this sort is recognized by the law, there is no
difficulty in transferring it; or, more accurately, there is no difficulty in
different persons successively enjoying similar rights in respect of the
subject-matter. If A, being the possessor of a horse or a field, gives up the
possession to B, the rights which B acquires stand on the same ground as A's
did before. The facts from which A's rights sprang have ceased to be true of A,
and are now true of B. The consequences attached by the law to those facts now
exist for B, as they did for A before. The situation of fact from which the
rights spring is continuing one, and any one who occupies it, no matter how,
has the rights attached to it. But there is no possession possible of a
contract. The [341] fact that a consideration was given yesterday by A to B,
and a promise received in return, cannot be laid hold of by X, and transferred
from A to himself. The only thing can be transferred is the benefit or burden
of the promise, and how can they be separated from the facts which gave rise to
them? How, in short, can a man sue or be sued on a promise in which he had no
part?

Hitherto it has been assumed, in dealing with any special right or
obligation, that the facts from which it sprung were true of the individual
entitled or bound. But it often happens, especially in modern law, that a
person acquires and is allowed to enforce a special right, although that facts
which give rise to it are not true of him, or are true of him only in part. One
of the chief problems of the law is to explain the machinery by which this
result has been brought to pass.

It will be observed that the problem is not coextensive with the whole
field of rights. Some rights cannot be transferred by any device or
contrivance; for instance, a man's right a to bodily safety or reputation.
Others again are incident to possession, and within the limits of that
conception no other is necessary. As Savigny said, "Succession does not apply
to possession by itself." /1/

But the notion of possession will carry us but a very little way in our
understanding of the modern theory of transfer. That theory depends very
largely upon the notion of succession, to use the word just quoted from
Savigny, and accordingly successions will be the subject of this and the
following Lecture. I shall begin by explaining the theory of succession to
persons deceased, and after that is done shall pass to the theory of transfer
between living [342] people, and shall consider whether any relation can be
established between the two.

The former is easily shown to be founded upon a fictitious
identification between the deceased and his successor. And as a first step to
the further discussion, as well as for its own sake, I shall briefly state the
evidence touching the executor, the heir, and the devisee. In order to
understand the theory of our law with regard to the first of these, at least,
scholars are agreed that it is necessary to consider the structure and position
of the Roman family as it was in the infancy of Roman society.

Continental jurists have long been collecting the evidence that, in the
earlier periods of Roman and German law alike, the unit of society was the
family. The Twelve Tables of Rome still recognize the interest of the inferior
members of the family in the family property. Heirs are called sui heredes,
that is, heirs of themselves or of their own property, as is explained by
Gaius. /1/ Paulus says that they are regarded as owners in a certain sense,
even in the lifetime of their father, and that after his death they do not so
much receive an inheritance as obtain the full power of dealing with their
property. /2/

Starting from this point it is easy to understand the [343] succession
of heirs to a deceased paterfamilias in the Roman system. If the family was the
owner of the property administered by a paterfamilias, its rights remained
unaffected by the death of its temporary head. The family continued, although
the head died. And when, probably by a gradual change, /1/ the paterfamilias
came to be regarded as owner, instead of a simple manager of the family rights,
the nature and continuity of those rights did not change with the title to
them. The familia continued to the heirs as it was left by the ancestor. The
heir succeeded not to the ownership of this or that thing separately, but to
the total hereditas or headship of the family with certain rights of property
as incident, /2/ and of course he took this headship, or right of representing
the family interests, subject to the modifications effected by the last
manager.

The aggregate of the ancestor's rights and duties, or, to use the
technical phrase, the total persona sustained by him, was easily separated from
his natural personality. For this persona was but the aggregate of what had
formerly been family rights and duties, and was originally sustained by any
individual only as the family head. Hence it was said to be continued by the
inheritance, /3/ and when the heir assumed it he had his action in respect of
injuries previously committed. /4/

Thus the Roman heir came to be treated as identified with his ancestor
for the purposes of the law. And thus it is clear how the impossible transfers
which I seek to explain were accomplished in that instance. Rights to which B
[344] as B could show no title, he could readily maintain under the fiction
that he was the same person as A, whose title was not denied.

It is not necessary at this point to study family rights in the German
tribes. For it is not disputed that the modern executor derives his
characteristics from the Roman heir. Wills also were borrowed from Rome, and
were unknown to the Germans of Tacitus. /1/ Administrators were a later
imitation of executors, introduced by statute for cases where there was no
will, or where, for any other reason, executors were wanting.

The executor has the legal title to the whole of the testator's personal
estate, and, generally speaking, the power of alienation. Formerly he was
entitled to the undistributed residue, not, it may fairly be conjectured, as
legatee of those specific chattels, but because he represented the person of
the testator, and therefore had all the rights which the testator would have
had after distribution if alive. The residue is nowadays generally bequeathed
by the will, but it is not even now regarded as a specific gift of the chattels
remaining undisposed of, and I cannot help thinking that this doctrine echoes
that under which the executor took in former times.

No such rule has governed residuary devises of real estate, which have
always been held to be specific in England down to the present day. So that, if
a devise of land should fail, that land would not be disposed of by the
residuary clause, but would descend to the heir as if there had been no
will.

Again, the appointment of an executor relates back to the date of the
testator's death. The continuity of person [345] is preserved by this fiction,
as in Rome it was by personifying the inheritance ad interim.

Enough has been said to show the likeness between our executor and the
Roman heir. And bearing in mind what was said about the heres, it will easily
be seen how it came to be said, as it often was in the old books, that the
executor "represents the person of his testator." /1/ The meaning of this
feigned identity has been found in history, but the aid which it furnished in
overcoming a technical difficulty must also be appreciated. If the executor
represents the person of the testator, there is no longer any trouble in
allowing him to sue or be sued on his testator's contracts. In the time of
Edward III., when an action of covenant was brought against executors, Persay
objected: "I never heard that one should have a writ of covenant against
executors, nor against other person but the very one who made the covenant, for
a man cannot oblige another person to a covenant by his deed except him who was
party to the covenant." /2/ But it is useless to object that the promise sued
upon was made by A, the testator, not by B, the executor, when the law says
that for this purpose B is A. Here then is one class of cases in which a
transfer is accomplished by the help of a fiction, which shadows, as fictions
so often do, the facts of an early stage of society, and which could hardly
have been invented had these facts been otherwise.

Executors and administrators afford the chief, if not the only, example
of universal succession in the English [346] law. But although they succeed per
universitatem, as has been explained, they do not succeed to all kinds of
property. The personal estate goes to them, but land takes another course. All
real estate not disposed of by will goes to the heir, and the rules of
inheritance are quite distinct from those which govern the distribution of
chattels. Accordingly, the question arises whether the English heir or
successor to real estate presents the same analogies to the Roman heres as the
executor.

The English heir is not a universal successor. Each and every parcel of
land descends as a separate and specific tiling. Nevertheless, in his narrower
sphere he unquestionably represents the person of his ancestor. Different
opinions have been held as to whether the same thing was true in early German
law. Dr. Laband says that it was; /1/ Sohm takes the opposite view. /2/ It is
commonly supposed that family ownership, at least of land, came before that of
individuals in the German tribes, and it has been shown how naturally
representation followed from a similar state of things in Rome. But it is
needless to consider whether our law on this subject is of German or Roman
origin, as the principle of identification has clearly prevailed from the time
of Glanvill to the present day. If it was not known to the Germans, it is
plainly accounted for by the influence of the Roman law. If there was anything
of the sort in the Salic law, it was no doubt due to natural causes similar to
those which gave rise to the principle at Rome. But in either event I cannot
doubt that the modern doctrine has taken a good deal of its form, and perhaps
some of its substance, from the mature system [347] of the civilians, in whose
language it was so long expressed. For the same reasons that have just been
mentioned, it is also needless to weigh the evidence of the Anglo-Saxon
sources, although it seems tolerably clear from several passages in the laws
that there was some identification. /1/

As late as Bracton, two centuries after the Norman conquest, the heir
was not the successor to lands alone, but represented his ancestor in a much
more general sense, as will be seen directly. The office of executor, in the
sense of heir, was unknown to the Anglo-Saxons, /2/ and even in Bracton's time
does not seem to have been what it has since become. There is, therefore, no
need to go back further than to the early Norman period, after the appointment
of executors had become common, and the heir was more nearly what he is
now.

When Glanvill wrote, a little more than a century after the Conquest,
the heir was bound to warrant the reasonable gifts of his ancestor to the
grantees and their heirs; /3/ and if the effects of the ancestor were
insufficient to pay his debts, the heir was bound to make up the deficiency
from his own property. /4/ Neither Glanvill nor his Scotch imitator, the Regiam
Majestatem, /5/ limits the liability to the amount of property inherited from
the same source. This makes the identification of heir and ancestor as complete
as that of the Roman law before such a limitation was introduced by Justinian.
On the other hand, a century [348] later, it distinctly appears from Bracton,
/1/ that the heir was only bound so far as property had descended to him, and
in the early sources of the Continent, Norman as well as other, the same
limitation appears. /2/ The liabilities of the heir were probably shrinking.
Britton and Fleta, the imitators of Bracton, and perhaps Bracton himself, say
that an heir is not bound to pay his ancestor's debt, unless he be thereto
especially bound by the deed of his ancestor. /3/ The later law required that
the heir should be mentioned if he was to be held.

But at all events the identification of heir and ancestor still
approached the nature of a universal succession in the time of Bracton, as is
shown by another statement of his. He asks if the testator can bequeath his
rights of action, and answers, No, so far as concerns debts not proved and
recovered in the testator's life. But actions of that sort belong to the heirs,
and must be sued in the secular court; for before they are so recovered in the
proper court, the executor cannot proceed for them in the ecclesiastical
tribunal. /4/

This shows that the identification worked both ways. The heir was liable
for the debts due from his ancestor, and he could recover those which were due
to him, until [349] the executor took his place in the King's Courts, as well
as in those of the Church. Within the limits just explained the heir was also
bound to warrant property sold by his ancestor to the purchaser and his heirs.
/1/ It is not necessary, after this evidence that the modern heir began by
representing his ancestor generally, to seek for expressions in later books,
since his position has been limited. But just as we have seen that the executor
is still said to represent the person of his testator, the heir was said to
represent the person of his ancestor in the time of Edward I. /2/ So, at a much
later date, it was said that "the heir is in representation in point of taking
by inheritance eadam persona cum antecessore," /3/ the same persona as his
ancestor.

A great judge, who died but a few years ago, repeats language which
would have been equally familiar to the lawyers of Edward or of James. Baron
Parke, after laying down that in general a party is not required to make
profert of an instrument to the possession of which he is not entitled, says
that there is an exception "in the cases of heir and executor, who may plead a
release to the ancestor or testator whom they respectively represent; so also
with respect to several tortfeasors, for in all these cases there is a privity
between the parties which constitutes an identity of person." /4/

But this is not all. The identity of person was carried [350] farther
still. If a man died leaving male children, and owning land in fee, it went to
the oldest son alone; but, if he left only daughters, it descended to them all
equally. In this case several individuals together continued the persona of
their ancestor. But it was always laid down that they were but one heir. /1/
For the purpose of working out this result, not only was one person identified
with another, but several persons were reduced to one, that they might sustain
a single persona.

What was the persona? It was not the sum of all the rights and duties of
the ancestor. It has been seen that for many centuries his general status, the
sum of all his rights and duties except those connected with real property, has
been taken up by the executor or administrator. The persona continued by the
heir was from an early day confined to real estate in its technical sense; that
is, to property subject to feudal principles, as distinguished from chattels,
which, as Blackstone tells us, /2/ include whatever was not a feud.

But the heir's persona was not even the sum of all the ancestor's rights
and duties in connection with real estate. It has been said already that every
fee descends specifically, and not as incident to a larger universitas. This
appears not so much from the fact that the rules of descent governing different
parcels might be different, /3/ so that the same person would not be heir to
both, as from the very nature of feudal property. Under the feudal system in
its vigor, the holding of land was only one [351] incident of a complex
personal relation. The land was forfeited for a failure to render the services
for which it was granted; the service could be renounced for a breach of
correlative duties on the part of the lord. /1/ It rather seems that, in the
beginning of the feudal period under Charlemagne, a man could only hold land of
one lord. /2/ Even when it had become common to hold of more than one, the
strict personal relation was only modified so far as to save the tenant from
having to perform inconsistent services. Glanvill and Bracton /3/ a tell us
that a tenant holding of several lords was to do homage for each fee, but to
reserve his allegiance for the lord of whom he held his chief estate; but that,
if the different lords should make war upon each other, and the chief lord
should command the tenant to obey him in person, the tenant ought to obey,
saving the service due to the other lord for the fee held of him.

We see, then, that the tenant had a distinct persona or status in
respect of each of the fees which he held. The rights and duties incident to
one of them had no relation to the rights and duties incident to another. A
succession to one had no connection with the succession to another. Each
succession was the assumption of a distinct personal relation, in which the
successor was to be determined by the terms of the relation in question.

The persona which we are seeking to define is the estate. Every fee is a
distinct persona, a distinct hereditas, or inheritance, as it has been called
since the time of Bracton. We have already seen that it may be sustained by
more [352] than one where there are several heirs, as well as by one, just as a
corporation may have more or less members. But not only may it be divided
lengthwise, so to speak, among persons interested in the same way at the same
time: it may also be cut across into successive interests, to be enjoyed one
after another. In technical language, it may be divided into a particular
estate and remainders. But they are all parts of the same fee, and the same
fiction still governs them. We read in an old case that "he in reversion and
particular tenant are but one tenant." /1/ This is only a statement of counsel,
to be sure; but it is made to account for a doctrine which seems to need the
explanation, to the effect that, after the death of the tenant for life, he in
reversion might have error or attaint on an erroneous judgment or false verdict
given against the tenant for life. /2/

To sum up the results so far, the heir of modern English law gets his
characteristic features from the law as it stood soon after the Conquest. At
that time he was a universal successor in a very broad sense. Many of his
functions as such were soon transferred to the executor. The heir's rights
became confined to real estate, and his liabilities to those connected with
real estate, and to obligations of his ancestor expressly binding him. The
succession to each fee or feudal inheritance is distinct, not part of the sum
of all the ancestor's rights regarded as one whole. But to this day the
executor in his sphere, and the heir in his, represent the person of the
deceased, and are treated as if they were one with him, for the purpose of
settling their rights and obligations.

The bearing which this has upon the contracts of the [353] deceased has
been pointed out. But its influence is not confined to contract; it runs
through everything. The most striking instance, however, is the acquisition of
prescriptive rights. Take the case of a right of way. A right of way over a
neighbor's land can only be acquired by grant, or by using it adversely for
twenty years. A man uses a way for ten years, and dies. Then his heir uses it
ten years. Has any right been acquired? If common sense alone is consulted, the
answer must be no. The ancestor did not get any right, because he did not use
the way long enough. And just as little did the heir. How can it better the
heir's title that another man had trespassed before him? Clearly, if four
strangers to each other used the way for five years each, no right would be
acquired by the last. But here comes in the fiction which has been so carefully
explained. From the point of view of the law it is not two persons who have
used the way for ten years each, but one who has used it for twenty. The heir
has the advantage of sustaining his ancestor's and the right is acquired.